Judicial Defiance Is Not a Conservative Principle

As an attorney, I am typically loath to comment on legal rulings based solely on media reports. The modern press, in its infinite capacity for inaccuracy, distills the law into a crude morality play, reducing complex jurisprudence to a series of facile “wins” and “losses” in the interminable struggle between Good and Evil. Federal court rulings, appeals, and Supreme Court decisions in particular are often limited in scope, procedural in nature, and require more than a modicum of legal understanding, yet are misrepresented as sweeping pronouncements, their actual holdings cast aside in favor of whatever interpretation best serves the partisan fervor of the day.

This is particularly true when the defendant in question is one Donald J. Trump, whose every utterance, every executive action, every legal challenge becomes the occasion for a national psychodrama. Admittedly, this is often for good reason. It is therefore with some hesitation that I address the recent ruling in which a federal judge issued an injunction blocking the Trump administration from temporarily deporting five Venezuelan nationals under the Alien Enemies Act, an 18th-century wartime measure. The administration, undeterred by the court order, proceeded with the deportations, thus inviting the inevitable judicial rebuke.

The legal intricacies of the Alien Enemies Act and its applicability to modern immigration enforcement are undoubtedly of interest, and one suspects that a competent attorney could make a plausible case either way. But that is not my present concern. The issue at hand is something far more fundamental: the rule of law, and more specifically, the integrity of the courts as the final arbiters of legal disputes in a constitutional republic.

The courts are not final because they are right; they are right because they are final. It doesn’t work any other way. Alexander Bickel, that great conservative legal thinker, referred to the Supreme Court as “the least dangerous branch,” a paradox that speaks to the peculiar strength of the judiciary. Unlike the executive, it commands no army; unlike the legislature, it controls no purse strings. It rules by the force of reason, not arms. And yet, its authority is absolute. For without a final say—without a body to resolve disputes, to uphold the law, to determine what is and is not within the scope of executive power—the entire edifice of ordered liberty collapses into anarchy.

Some will protest: Must we obey judicial decrees even when we believe them to be wrong? To which the answer is yes. Not because judges are infallible (they are not), nor because we must resign ourselves to the depredations of activist courts (we must not), but because the alternative is far worse. The check on judicial overreach lies not in executive defiance but in the constitutional mechanisms designed for that purpose: the nomination, confirmation, and even removal of judges; the legislative power to define jurisdiction and make or change laws; and in the rarest of circumstances, constitutional amendment.

There is precedent, of course, for defying the courts. When the Supreme Court issued its ruling in Worcester v. Georgia (1832), President Andrew Jackson is said to have quipped, “John Marshall has made his decision; now let him enforce it.” The result was the Trail of Tears. A century later, the Roosevelt administration openly defied a federal court injunction against its steel seizure. And, most famously, Abraham Lincoln disregarded Chief Justice Taney’s ruling in Ex parte Merryman, which held that the suspension of habeas corpus was unconstitutional.

But Lincoln, as ever, is the exception that proves the rule. His defiance came in the context of civil war, when the Union itself, and therefore the Constitution, was in existential peril. Few, I suspect, would argue that the current moment calls for similar disregard of legal authority. The deportation of Venezuelan migrants—gang-affiliated though they may be—does not rise to the level of an insurrection, especially when all that was ordered was that they continue to be detained while the process plays out. If one wishes to claim Lincolnian license, one must first show cause.

The danger in embracing executive nullification is that it cuts both ways. We conservatives are not always in power, nor will we always control the courts. If we establish the precedent that a president may ignore judicial rulings when it suits him, we invite future administrations to do the same. Shall we rejoice when a Democratic president, unshackled by judicial authority, declares an executive ban on firearms, dismisses the inevitable injunction as a mere inconvenience, and proceeds with the confiscations? Would we be sanguine if the next left-wing administration determines that conservative nonprofits are in violation of campaign finance laws, disregards the courts, and seizes their assets accordingly? We’ve already seen, during Covid for example, the proclivity for Democrat administrations to close churches and schools while leaving open other equally crowded establishments, like casinos, bars, and movie theatres, without any justification. Who did we run to then? The courts. And I promise you, there will be a next time. There always is.

It is the mark of a civilization, as opposed to a rabble, that it subjects itself to laws even when they are inconvenient. This is particularly true for those who profess to be conservatives. It is not enough to invoke the Constitution in rhetoric while disregarding it in practice. Fidelity to the constitutional order requires that we accept its constraints even when they frustrate us. The executive branch is not without recourse. If the administration believes the courts have erred, let it make its case, let it appeal, let it persuade the public. But let it not assume the role of final arbiter, lest we find ourselves in a world where the law is determined not by argument but by the will of the strongest.

The courts matter. We must remember that, or one day, when we need them most, we may find that they no longer do.